Amerifactors Financial Group, LLC v. Enbridge, Inc. et al
ORDER granting 12 motion for discovery. Signed by Magistrate Judge Thomas B. Smith on 11/7/2013. (SMW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
AMERIFACTORS FINANCIAL GROUP,
Case No: 6:13-cv-1446-Orl-22TBS
ENBRIDGE, INC., GLOBAL ENERGY
CONTRACTORS, LLC and SAMMIE L.
This case comes before the Court on Plaintiff’s Motion for Authorization to Conduct
Jurisdictional Discovery and for Extension of Time to Respond to Motion to Dismiss for
Lack of Jurisdiction over Defendant. (Doc. 12). The motion is due to be granted.
Plaintiff Amerifactors Financial Group, LLC filed this case in state court, alleging in
Count I, that Defendant Enbridge, Inc. (“Enbridge”) breached a contract between the
parties; in the alternative, in Count II for promissory estoppel against Enbridge; in Count
III for breach of contract against Defendant Global Energy Contractors, LLC; and in Count
IV for breach of guarantee by Defendant Sammie L. Moffett. (Doc. 2). The action against
Enbridge is based upon two blanket payment contracts signed by Terry Wheeler and
Quinton Brown. The contracts list Enbridge as the “client” and identify Wheeler as a
Construction Superintendent and Brown as a Construction Supervisor. (Doc. 2-1 p. 15;
Doc. 2-2, p. 1). The complaint alleges that Enbridge is a Canadian corporation with its
principal place of business in Canada. (Doc. 1, ¶ 2). Plaintiff avers that Enbridge is
subject to jurisdiction in the state of Florida either because it breached a contract in
Florida, see FLA. STAT. § 48.193(1)(g), or because it otherwise performed acts subjecting
it to jurisdiction under § 48.193. (Id., ¶ 21).
On September 9, 2013 Enbridge moved to dismiss the case for lack of personal
jurisdiction. (Docs. 1-4, 3). The motion is based upon the affidavit of Enbridge’s Vice
President and Corporate Secretary, Tyler Wade Robinson. (Doc. 17-1). In his affidavit,
Robinson states that: Enbridge is a Calgary-based corporation organized under Canadian
law; Enbridge does not do business or sell or advertise any of its products in Florida and
has never registered as a foreign corporation or maintained an office in Florida; Enbridge
is not a party to any contracts at issue in this case; Enbridge has never employed
Wheeler and Brown; Wheeler and Brown lacked authority to enter any contract on
Enbridge’s behalf; and Enbridge has never conducted business at the Texas address
where Amerifactors communicated with Wheeler and Brown. (Id.). On September 18,
Enbridge removed the case to this Court (Doc. 1), and on October 3, 2013 Amerifactors
filed the pending, opposed motion for leave to conduct jurisdictional discovery
A. Personal Jurisdiction
With limited exceptions not relevant here, a federal district court may exercise
personal jurisdiction over a defendant only when the defendant “is subject to the
jurisdiction of a court of general jurisdiction in the state where the district court is located.”
FED. R. CIV. P. 4(k)(1)(A). Unless the state in which a court sits authorizes its own courts
to exercise jurisdiction to the limits of what the Constitution allows (and Florida does not,
see Venetian Salami Co. v. Parthenais, 554 So.2d 499, 500 (Fla. 1989)), the Court must
conduct a two-step inquiry to determine whether it has personal jurisdiction over a
particular defendant. See Mutual Serv. Ins. Co. v. Frit Indus., Inc., 358 F.3d, 1312, 1319
(11th Cir. 2004).
First, exercising personal jurisdiction must be appropriate under one of the
provisions of Florida’s long-arm statute. Id.; see FLA. STAT. § 48.193. The provision most
obviously relevant to this case is paragraph (1)(g), which authorizes jurisdiction over a
defendant “who personally or through an agent . . . breach[es] a contract in [Florida] by
failing to perform acts required by the contract to be performed in [Florida],” for claims
arising from the breach. Enbridge’s motion to dismiss anticipates two other potential
bases for jurisdiction: paragraph (1)(a), which permits jurisdiction over claims arising from
the defendant’s “operating, conducting, engaging in, or carrying on a business or
business venture in this state or having an office or agency in [Florida];” and subsection
(2), which authorizes jurisdiction over “a defendant who is engaged in substantial and not
isolated activity within [Florida]” for all claims, whether or not they arise from the
defendant’s activities in Florida.
Second, if Florida’s long-arm statute authorizes the exercise of personal
jurisdiction over the defendant, the Court must consider whether the exercise of
jurisdiction would violate due process. Mutual Serv., 358 F.3d at 1319. Due Process
requires that a defendant have sufficient “minimum contacts” with the forum state such
that “maintenance of the suit does not offend ‘traditional notions of fair play and
substantial justice.’" Int’l Shoe Co. v. Washington, 326 U.S. 210, 216 (1945) (quoting
Milliken v. Meyer, 311 U.S. 457, 463 (1940)). To satisfy the minimum contacts
requirement, there must “be some act by which the defendant purposefully avails itself of
the privilege of conducting activities within the forum [s]tate, thus invoking the benefits
and protections of its laws.” Hanson v. Denckla, 357 U. S. 235, 253 (1958). Once the
plaintiff has shown purposeful availment, the defendant “must present a compelling case
that the presence of some other considerations would render jurisdiction unreasonable.”
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985).
Since International Shoe, courts have identified two kinds of jurisdiction: “general
or all-purpose jurisdiction, and specific or case-linked jurisdiction.” Goodyear Dunlop
Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011) (quoting Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, nn. 8, 9, 104 S.Ct. 1868, 80
L.Ed.2d 404 (1984)). A court may exercise general jurisdiction over a foreign corporation
only when its “affiliation with the [s]tate [is] so ‘continuous and systematic’ as to render
[it] essentially at home in the forum [s]tate.” Id. (quoting Int’l Shoe, 326 U.S. at
317). “Specific jurisdiction, on the other hand, depends on an affiliatio[n] between the
forum and the underlying controversy, principally, activity or an occurrence that takes
place in the forum [s]tate and is therefore subject to the [s]tate's regulation.” Id. (internal
The fact pattern in this case is a familiar one: an out-of-state corporation
(allegedly) breaches a contract with an individual or entity located in the forum state, by
failing to perform a contractual obligation in the forum state. Since International Shoe, the
Supreme Court has decided two cases that fit this pattern, each time finding personal
jurisdiction. In McGee v. International Life Insurance Co., 355 U.S. 220 (1957), a
California resident purchased a life insurance policy from an Arizona-based insurance
company. Id. at 221. The defendant, an insurance company based in Texas, had agreed
to assume the original insurer’s obligations under the policy and sent the insured a
reinsurance certificate offering to insure him on the same terms as he was currently
insured. Id. The insured accepted the offer and, until he died in 1950, paid premiums by
mail from his home in California to the defendant’s office in Texas. Id. at 221–22. The
Court held that the defendant was subject to personal jurisdiction in California, even
though neither it nor the original insurer ever had an office or agent in California or ever
solicited or did any other insurance business in California. Id. at 222, 224. The Court
explained that it was “sufficient for purposes of due process that the suit was based on a
contract which had substantial connection with that State.” Id. at 224.
The Court’s next foray into personal jurisdiction law in contract cases came in
Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). There, the defendant Rudzewicz
entered into a franchise agreement with Burger King, a Florida corporation, to open a
franchise in Drayton Plains, Michigan. Id. at 467–68. During negotiations, Rudzewicz
communicated with Burger King’s offices in Miami and Birmingham, Alabama. Id. at 468.
Burger King cancelled the agreement after Rudzewicz fell behind on payments, but
Rudzewicz continued to operate the restaurant anyway. Id. Burger King sued Rudzewicz
in the United States District Court for the Southern District of Florida, alleging in its
complaint that Rudzewicz had failed to make payments required to be made to Burger
King’s Miami headquarters and was tortiously infringing Burger King’s trademarks and
service marks by operating an unauthorized restaurant. Id. at 468–69. In its opinion, the
Court noted that “an individual’s contract with an out-of-state party alone” cannot
“automatically establish sufficient minimum contacts in the other party’s home forum,” but
that other factors—such as “prior negotiations and contemplated future consequences,
along with the terms of the contract and the parties’ actual course of dealing—[must] be
evaluated in determining whether the defendant purposefully established minimum
contacts with the forum.” Id. at 479 (emphasis in original). The Supreme Court held that
Burger King could sue Rudzewicz in Florida because the franchise dispute “grew directly
out of ‘a contract which had a substantial connection with [Florida],’” and because other
factors did not render jurisdiction unreasonable in that case. Id. at 479, 487 (quoting
McGee, 355 U.S. at 223).
B. Procedures for Deciding a Motion to Dismiss for Lack of Personal Jurisdiction
When a defendant moves to dismiss for lack of personal jurisdiction, “the plaintiff
bears the ultimate burden of establishing that personal jurisdiction is present.” Oldfield v.
Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1217 (11th Cir. 2009). “A district court may
decide a motion to dismiss for lack of personal jurisdiction ‘on the basis of affidavits
alone; or it may permit discovery in aid of the motion; or it may conduct an evidentiary
hearing on the merits of the motion.’” Shakour v. Federal Republic of Germany, 199 F.
Supp. 2d 8, 14–15 (S.D.N.Y. 2002) (quoting Marine Midland Bank, N.A. v. Miller, 664 F.2d
899, 904 (2d Cir. 1981)). “[A] judge may make factual findings necessary to resolve [a]
motion to dismiss for lack of personal jurisdiction.” Bryant v. Rich, 530 F.3d 1368, 1376
(11th Cir. 2008).
If the district court chooses to decide a motion without an evidentiary hearing or
jurisdictional discovery, a plaintiff need only establish a prima facie case of personal
jurisdiction over the nonresident defendant. Madara v. Hall, 916 F.2d 1510, 1514 (11th
Cir. 1990) (citing Morris v. SSE, Inc., 843 F.2d 489, 492 (11th Cir. 1990)).1 A prima facie
case is established if the plaintiff presents enough evidence to withstand a motion for
directed verdict. Id. (citing Morris, 843 F.2d at 492). Where there are disputed issues of
fact, it may be appropriate for the court to conduct an evidentiary hearing on personal
Accord Barrett v. Lombardi, 239 F.3d 23, 26 (1st Cir, 2001); A.I. Trade Finance, Inc. v. Petra
Bank, 989 F.2d 76, 79 (2d Cir. 1993); Kelly v. Syria Shell Petroleum Development, B.V., 213 F.3d 841, 854
(5th Cir. 2000); Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1387 (8th Cir. 1991).
jurisdiction. Bruce v. Fairchild Indus., Inc., 413 F. Supp. 914, 915 (W.D. Okla. 1974).
See also Venetian Salami, 554 So.2d at 503.2 Whether to hold an evidentiary hearing is
in the sound discretion of the district court. Gregory v. EBF & Assocs., L.P., 595 F. Supp.
2d 1334, 1336 (S.D. Fla. 2009).
In many cases, the court need not look beyond the pleadings to decide
jurisdictional questions. For example, when confronted with a “facial” attack on subject
matter jurisdiction, the court need only consider whether the plaintiff has sufficiently
alleged a basis for subject matter jurisdiction in his complaint, taking the allegations in the
complaint as true. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). “Factual”
attacks on subject matter jurisdiction may require the court to resolve disputed facts, but
not always. When the defendant’s attack on subject matter jurisdiction also implicates the
underlying merits of the plaintiff’s claim, “‘[t]he proper course of action for the district court
is to find that jurisdiction exists and deal with the objection as a direct attack on the merits
of the plaintiff’s case.’” Id. (quoting Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. May
20, 1981)).3 At least for subject matter jurisdiction, “[w]here the jurisdictional issues are
intertwined with the substantive merits, ‘the jurisdictional issues should be referred to the
merits, for it is impossible to decide one without the other.’” Eaton v. Dorchester
Development, Inc., 692 F.2d 727, 733 (11th Cir. 1982).
Arguably, challenges to personal jurisdiction that also implicate the merits should
be treated similarly. Several courts have held that a plaintiff may overcome a motion to
Venetian Salami holds that an evidentiary hearing is required when affidavits conflict. 554 So.2d
at 503. Although Rule 4(k)(1)(A) directs the Court to apply state law to determine a defendant’s amenability
to service of process, the procedures the Court must or may use in deciding that question are governed by
federal common law, not state law. Cf. Donovan v. Penn Shipping Co., 429 U.S. 648 (1977) (per curiam)
(federal common law rule providing that a plaintiff may not appeal from a remittitur order he has accepted
governs even in diversity cases).
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit
adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
dismiss for lack of personal jurisdiction by making only a prima facie showing of the facts
relevant to both jurisdiction and the merits.4 Requiring only a prima facie showing for
facts relevant to both personal jurisdiction and the merits avoids unnecessary and
premature adjudication and moots difficult questions surrounding the applicability of lawof-the-case and preclusion doctrines to jurisdictional rulings.5 Jetco Electronic Indus., Inc.
v. Gardiner, 473 F.2d 1228, 1232 (5th Cir. 1973), abrogated on other grounds by United
States v. Cooper, 135 F.3d 960 (5th Cir. 1998). See generally Kevin M. Clermont,
Jurisdictional Fact, 91 Cornell L. Rev. 973 (2006) (arguing for a prima facie standard for
jurisdictional facts that overlap with the merits).
Moreover, there is substantial authority supporting the proposition that, in such a
case, the district court may permit the case to proceed to general discovery and even trial
before ruling on the question of jurisdiction. See Wyatt, 686 F.2d at 283; Combs v.
Bakker, 886 F.2d 673, 676 (4th Cir. 1989); see also Rice v. Nova Biomedical Corp., 38
F.3d 909, 915 (7th Cir. 1995) (noting that district court may defer ruling on 12(b)(2) motion
See, e.g., Wyatt v. Kaplan, 686 F.2d 276, 280 (5th Cir. 1982) (“When . . . personal jurisdiction is
predicated on the commission of a tort within the state . . . the jurisdictional question involves some of the
same issues as the merits of the case, and the plaintiff must make a prima facie case on the merits to
withstand a motion to dismiss under Rule 12(b)(2).”); Data Disc, Inc. v. Sys. Technology Assocs., Inc., 557
F.2d 1280, 1285 n. 2 (9th Cir. 1977) (“[W]here the jurisdictional facts are enmeshed with the merits, the
district court may decide that the plaintiff should . . . be required only to establish a prima facie showing of
jurisdictional facts with affidavits and perhaps discovery materials.”); Schramm v. Oakes, 352 F.2d 143, 149
(10th Cir. 1965); Kopff v. Battaglia, 425 F. Supp. 2d 76, 80 & n.3 (D.D.C. 2006); Vest v. Waring, 565 F.
Supp. 674, 693 (N.D. Ga. 1983) (“[W]hen . . . a decision on the jurisdictional dispute also embraces
questions of ultimate liability, and when the determination of the jurisdictional facts is intertwined with and
potentially dispositive of the merits of the lawsuit, the plaintiff need only show ‘threshold’ or prima facie
jurisdiction when the defendant challenges personal jurisdiction.”); Gemini Enters., Inc. v. WFMY Television
Corp., 470 F. Supp. 559, 565 n.4 (M.D.N.C. 1979); McLaughlin v. Copeland, 435 F. Supp. 513 (D. Md.
1977); Holfield v. Power Chem. Co., 382 F. Supp. 388 (D. Md. 1970).
If the Court finds that Enbridge is not subject to its jurisdiction because Enbridge was not bound
by the actions of Wheeler and Brown, and Amerifactors then sues Enbridge in a court where Enbridge is
subject to personal jurisdiction, Amerifactors may be precluded from relitigating the question of whether
Enbridge was bound. See In re Sonus Networks, Inc., Shareholder Derviative Litigation, 499 F.3d 47, 59
(1st Cir. 2007) (noting that the “modern view” that jurisdictional dismissals are entitled to issue preclusive
effect). Conversely, if the Court finds that Enbridge is bound by the actions of Wheeler and Brown and
therefore is subject to personal jurisdiction, it will have to choose between giving Enbridge an opportunity to
relitigate the question or denying Enbridge its right to a jury trial on the issue.
until trial if “it is infeasible or inconvenient to make a definitive determination of personal
jurisdiction on the basis of affidavits or other evidence presented in a pretrial hearing”).
This approach, like the prima facie approach, avoids premature and unnecessary
adjudication as well as thorny preclusion and law-of-the-case problems.
There are drawbacks to these approaches. They risk subjecting defendants who
in fact have not “purposefully avail[ed]” themselves of the protections and benefits of the
forum state to the expense of litigating in the forum.6 It is ultimately up to the district judge
whether to apply the prima facie standard and when to rule on Enbridge’s motion. If the
district judge decides to resolve the motion now by taking evidence and finding facts, and
does not apply the prima facie standard, jurisdictional discovery may be necessary. See
Eaton, 692 F.2d at 729 (11th Cir. 1982) (“[F]ederal courts have the power to order, at their
discretion, the discovery of facts necessary to ascertain their competency to entertain the
merits.”). When the question of jurisdiction is genuinely in dispute and the movant has
access to facts relevant to the motion, refusing to allow jurisdictional discovery is an
abuse of discretion. Id. at 729–30 (noting that jurisdictional discovery is “not entirely
discretionary”); Mother Doe I v. Al Maktoum, 632 F. Supp. 2d 1130, 1145 (S.D. Fla.
2007). A plaintiff “must be given an opportunity to develop facts sufficient to support a
determination on the issue of jurisdiction.” Eaton, 692 F.3d at 732. This “qualified right”
to jurisdictional discovery, Mother Doe, 632 F. Supp. 2d at 1145, applies where “factual
allegations suggest the possible existence of requisite contacts between the defendant
and the forum state with ‘reasonable particularity.’” Commissariat à L’Energie Atomique
While forcing a defendant to litigate in the forum may impose significant expense, it does not
implicate the defendant’s due process rights. “[T]he individual interest protected” by the due process clause
in the personal jurisdiction context is not in avoiding litigation but “in ‘not being subject to the binding
judgments of a forum with which [the defendant] has established no meaningful contacts, ties, or relations.’”
Van Cauwenberghe v. Biard, 486 U.S. 517, 526 (1988) (quoting Burger King, 471 U.S. at 471–72).
v. Chi Mei Optoelectronics Corp., 395 F.3d 1315, 1323 (11th Cir. 2006) (quoting Mellon
Bank (East) PSFS, Nat’l Ass’n v. Farino, 960 F.2d 1217, 1233 (3d Cir. 1992)). To hold
otherwise would allow a defendant to defeat jurisdiction on the strength of a self-serving
affidavit “while withholding information on its contacts to the forum.” El-Fadl v. Cent.
Bank of Jordan, 75 F.3d 668, 676 (D.C. Cir. 1996).
If a court chooses to allow jurisdictional discovery, it enjoys broad discretion in
setting the scope of that discovery. Washington v. Norton Mfg., Inc., 588 F.2d 441, 443
(5th Cir. 1979). In exercising this discretion, the court must be cognizant that the purpose
of jurisdictional discovery “is to ascertain the truth of the allegations or facts underlying
the assertion of personal jurisdiction.” Atlantis Hydroponics, Inc. v. Int’l Growers Supply,
Inc., 915 F. Supp. 2d 1365, 1380 (N.D. Ga. 2013).
A. Amerifactors is Entitled to Jurisdictional Discovery
Discovery is appropriate because the allegations in Amerifactors’ complaint
“suggest the possible existence of requisite contacts between [Enbridge] and [Florida]
with reasonable particularity.” Commissariat à L’Energie Atomique, 395 F.3d at 1323
(11th Cir. 2006) (internal quotations and citations omitted). Amerifactors alleges that
Enbridge executed the contracts and later breached them when it failed to make required
payments to Amerifactors in Florida, as required by the contracts. (Doc. 2, ¶¶ 12, 19).
Amerifactors has attached to its complaint exhibits including emails from Wheeler and
Brown sent from enbridge.com email addresses. (Doc. 2-1, p. 16–17). Each email
contains as an attachment an executed contract referring specifically to “Enbridge, Inc.”
and bearing the signature of Wheeler or Brown. (Doc. 2-1, pp. 14–17; Doc. 2-2, p. 1). On
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the contracts, Wheeler lists his title as Construction Superintendent and Brown lists his
title as Construction Supervisor. (Doc. 2-1 p. 15; Doc. 2-2, p. 1).
The disputed issue—whether Wheeler and Brown’s execution of the contracts can
be attributed to Enbridge—is material to determining whether this Court has jurisdiction
over Enbridge. If Enbridge is not bound by the contracts, then it is not a party to a
contract requiring performance in Florida and is probably not subject to Florida long-arm
jurisdiction. If Enbridge is bound by Wheeler or Brown’s conduct, then it is subject to
Florida long-arm jurisdiction because it allegedly “breach[ed] a contract in this state by
failing to perform acts required by the contract to be performed in this state.” FLA. STAT.
§ 48.193(1)(g). If the Court finds that Enbridge is bound by the contracts, it is also likely
to find that Enbridge has sufficient minimum contacts with the state of Florida to be haled
into court here, because the contracts have “a substantial connection” to Florida. McGee,
355 U.S. at 524.
Enbridge argues that because Plaintiff failed to submit an affidavit contradicting
Robinson’s affidavit, this case must be dismissed for lack of jurisdiction. (Doc. 13, pp. 8–
10). In support of this contention, Enbridge points to Future Technology Today, Inc. v.
OSF Healthcare Systems, 218 F.3d 1247, 1249 (11th Cir. 2000) (per curiam), and Posner
v. Essex Insurance Co., Ltd, 178 F.3d 1209, 1215 (11th Cir. 1999), as well as one
unreported case from this district.7 Future Technology and Posner speak primarily to the
appropriate standards for deciding the motion to dismiss itself when jurisdictional facts
are disputed. Future Technology does not mention discovery at all, and Posner
Tissuenet Custom Applications, LLC v. Blood & Tissue Ctr. of Cent. Tex., No. 6:05-cv-01931GAP-KRS, 2006 WL 2355575 (M.D. Fla. 2006). Tissuenet does not support Enbridge’s position, because
the Court in Tissuenet granted jurisdictional discovery prior to deciding the defendant’s motion to dismiss.
See Id., No. 6:05-cv-01931-GAP-KRS (M.D. Fla. Apr. 19, 2006) (Doc. 41, Order re: Motion to Dismiss for
Lack of Personal Jurisdiction).
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discusses it only in a footnote. 178 F.3d at 1214 n. 7. In Posner, the court dismissed
plaintiffs’ argument that the district court should have allowed jurisdictional discovery on
the grounds that the plaintiffs had failed to pursue any discovery in the eight months
between the filing of the complaint and the district court’s dismissal of the case. Id. The
only reference to jurisdictional discovery in the Posner plaintiffs’ filings was “on the first
page of [the plaintiffs’] memorandum in opposition to the motion to dismiss filed seven
and one-half months after the complaint and more than five months after the motion to
dismiss,” and “even then,” the Posner plaintiffs “failed to specify what they thought could
or should be discovered.” Id. By contrast, Amerifactors served its first request for
jurisdictional discovery less than a month after suit was filed and before it was even
permitted to do so under the federal and local rules. It filed its motion for leave to take
jurisdictional discovery less than a month and a half after filing suit and within the time for
responding to Enbridge’s motion to dismiss.
To the extent Enbridge relies on the Robinson affidavit to support its motion,
Posner offers little comfort. The Eleventh Circuit found the Posner defendant’s affidavit
“of little significance to the jurisdictional question” because it contained little more than
“legal conclusions.” Id. at 1215. Like the affidavit in Posner, the Robinson Affidavit
“explains [Enbridge]’s corporate structure and status; summarily asserts that [Enbridge]
never has done business in or directed contacts into Florida;” and “denies in a conclusory
way any other actions that would bring [Enbridge] within the ambit of the Florida long-arm
statute.” Id. The most relevant assertion in the affidavit is that Wheeler and Brown “do
not have the power or authority to enter into contracts on behalf of Enbridge, Inc.” (Doc.
17-1, ¶ 11). But this is also a legal conclusion that depends on facts including Enbridge’s
manifestations to Wheeler, Brown, and third parties like Amerifactors. See Restatement
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(Third) Agency §§ 2.01 (actual authority); 2.03 (apparent authority). Those are the sort of
facts a plaintiff has a “qualified right” to develop in jurisdictional discovery before the court
dismisses the case.
Finally, the fact that the same issue—the attributability of Wheeler and Brown’s
conduct to Enbridge—bears on both jurisdiction and the merits also counsels strongly in
favor of permitting discovery. Because attribution of Wheeler and Brown’s conduct to
Enbridge is also central to the merits, discovery geared toward this issue now will mean
less discovery later should the Court allow the case to proceed.
B. The Scope of Discovery
Amerifactors proposes a 60-day timetable for jurisdictional discovery, limited to the
a. The relationship between the various related Enbridge
entities, including Enbridge, Inc. and the plaintiffs in
related, pending Texas state court litigation . . . ;
b. [T]he employers of Mr. Wheeler and Mr. Brown when they
executed the contracts that are attached to Plaintiff’s
Complaint as Composite Exhibit 3 (as well as the
employers of Mr. Wheeler and Mr. Brown when they
executed a number of earlier contracts that were
purportedly signed on behalf of Enbridge, Inc.);
c. [T]he identity of the individuals that authorized Mr. Wheeler
and Mr. Brown to sign the contracts attached to Plaintiff’s
Complaint as Composite Exhibit 3, as well as the employer
or employers of those authorizing individuals; [and]
d. Enbridge, Inc.’s Florida connections including but not
limited to Florida sales, contracts with other Florida based
entities, and advertising in the state of Florida.
(Doc. 12, pp. 3–4). Amerifactors also proposes that it have ten days following the close of
this discovery period in which to file its response to Enbridge’s motion to dismiss for lack
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of personal jurisdiction. Enbridge did not offer a different discovery plan in its opposition
to Amerifactors’ motion.
The first three topics upon which Amerifactors seeks discovery are aimed at
evidence bearing directly on this dispute and are material to jurisdiction and the merits.
Discovery on these topics is therefore, appropriate. The fourth topic goes farther, as it
seeks discovery of matters that may bear little or no relation to this case. Discovery on
Enbridge’s unrelated activities in Florida is appropriate only to the extent it might uncover
facts that could influence the Court’s determination of Enbridge’s motion to dismiss.
Enbridge’s contacts with Florida are relevant to specific jurisdiction minimum contacts
analysis only to the extent that those contacts are related to this case. Posner, 178 F.3d
at 1220. And, it seems doubtful that Enbridge has established contacts with this state
that are so “continuous and systematic” as to render it “essentially at home” in Florida,
and therefore subject to general jurisdiction in this Court. Goodyear, 131 S. Ct. at 2851;
see also FLA. STAT. § 48.193(2). Amerifactors has offered only speculation that Enbridge
“operat[es], conduct[s], engag[es] in, or carr[ies] on a business or business venture in this
state or ha[s] and office or agency in this state” and that this suit “arises from” those
activities. FLA. STAT. § 48.193(1)(a).
Enbridge’s other Florida contacts may be relevant to the extent they bear on the
reasonableness prong of the due process analysis. See Asahi Metal Indus. Co., Ltd. v.
Superior Court of Cal., Solano Cnty., 480 U.S. 102, 113–16 (1987); Burger King, 471 U.S.
482–85. Because Enbridge bears the burden of establishing unreasonableness, the
Court will permit inquiry into these matters to the extent they are raised in the Robinson
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Therefore, upon due consideration:
1. Amerifactors’ Motion for Jurisdictional Discovery (Doc. 12) is GRANTED.
2. The parties are granted leave to conduct jurisdictional discovery.
3. The scope of jurisdictional discovery shall be limited to the following subjects:
a. The relationship between the various related Enbridge entities;
b. The past and current employers of Wheeler and Brown;
c. The identity of the individuals that authorized Wheeler and Brown to sign
the contracts, as well as the employer or employers of those authorizing
d. To the extent raised by the Robinson affidavit, Enbridge’s Florida
connections including but not limited to Florida sales, contracts with
other Florida based entities, and advertising in the state of Florida.
4. The deadline for jurisdictional discovery shall be January 31, 2014. Each party
shall timely serve discovery requests so that the Federal Rules of Civil
Procedure allow for a response prior to the discovery deadline. The Court may
deny as untimely all motions to compel filed after the discovery deadline.
5. Amerifactors may take the depositions of Terry Wheeler, Quinton Brown, and
Tyler Wade Robinson. All other depositions require leave of Court.
6. Amerifactors shall have until February 14, 2014 to respond to Enbridge’s
Motion to Dismiss (Doc. 3).
IT IS SO ORDERED.
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DONE and ORDERED in Orlando, Florida on November 7, 2013.
Copies furnished to Counsel of Record
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